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Whistleblower Investigations

Manual

* OSHA ARCHIVE DOCUMENT * NOTICE: This is an OSHA Archive Document and may no longer represent OSHA policy.

* OSHA ARCHIVE DOCUMENT * This document is presented here for research and review purposes only.

DIRECTIVE NUMBER: CPL 02-03-003 EFFECTIVE DATE: September 20, 2011

SUBJECT: WHISTLEBLOWER INVESTIGATIONS MANUAL

ABSTRACT

Purpose: This Instruction implements the OSHA Whistleblower Investigations Manual, and supersedes the August 22, 2003 Instruction. This manual outlines procedures, and other information relative to the handling of retaliation complaints under the various whistleblower statutes delegated to OSHA and may be used as a ready reference.

Scope: OSHA-wide.

References: The whistleblower provisions of the following statutes: Occupational Safety and Health Act (OSHA 11(c)), 29 U.S.C. 660(c); Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105; Asbestos Hazard Emergency Response Act (AHERA), 15 U.S.C. 2651; International Safe Container Act (ISCA), 46 U.S.C. 80507; Safe Drinking Water Act (SDWA), 42 U.S.C. 300j-9(i); Federal Water Pollution Control Act (FWPCA), 33 U.S.C. 1367; Toxic Substances Control Act (TSCA), 15 U.S.C. 2622; Solid Waste Disposal Act (SWDA), 42 U.S.C. 6971; Clean Air Act (CAA), 42 U.S.C. 7622; Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9610; Energy Reorganization Act (ERA), 42 U.S.C. 5851; Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121; Sarbanes Oxley Act (SOX), 18 U.S.C. 1514A; Pipeline Safety

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Improvement Act (PSIA), 49 U.S.C. 60129; Federal Railroad Safety Act (FRSA), 49 U.S.C. 20109; National Transit Systems Security Act (NTSSA), 6 U.S.C. 1142; Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. 2087; Affordable Care Act (ACA), 29 U.S.C. 218C; Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 12 U.S.C.A. 5567; Seamans Protection Act, 46 U.S.C. 2114 (SPA), as amended by Section 611 of the Coast Guard Authorization Act of 2010, P.L. 111-281; and FDA Food Safety Modernization Act (FSMA), 21 U.S.C. 399d.

29 CFR Part 1977 - Discrimination Against Employees Exercising Rights under the Williams-Steiger Occupational Safety and Health Act; 29 CFR Part 1978 - Interim Final Rule, Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Surface Transportation Assistance Act of 1982; 29 CFR Part 1979 - Procedures for the Handling of Discrimination Complaints under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century; 29 CFR Part 1980 - Procedures for the Handling of Discrimination Complaints under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002; 29 CFR Part 1981 - Procedures for the Handling of Discrimination Complaints under Section 6 of the Pipeline Safety Improvement Act of 2002; 29 CFR Part 24 - Final Rule, Procedures for the Handling of Retaliation Complaints under the Employee Protection Provisions of Six Federal Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as amended; 29 CFR Part 1982 Interim Final Rule, Procedures for the Handling of Retaliation Complaints under the National Transit Systems Security Act and the Federal Railroad Safety Act; 29 CFR Part 1983 Interim Final Rule - Procedures for the Handling of Retaliation Complaints under Section 219 of the Consumer Product Safety Improvement Act of 2008.

OSHA Instruction CPL 02-00-148, OSHA Field Operations Manual (FOM), November 9, 2009.

OSHA Instruction CPL 02-02-072, Rules of agency practice and procedure concerning OSHA access to employee medical records, August 22, 2007.

OSHA Instruction CPL 02-00-098, Guidelines for Case File Documentation for Use with Videotapes and Audiotapes, October 12, 1993.

Cancellations: OSHA Instruction DIS 0-0.9, Whistleblower Investigations Manual, August 22, 2003; and OSHA Instruction DIS .7, Referral

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of Section 11(c) Complaints to State Plan States, February 27, 1986.

State Impact: Notice of Intent, Adoption, and Submission of a Plan Change Supplement required. See Chapter 1, paragraph VI.

Action Offices: National, Regional and Area Offices.

Originating Office: Directorate of Enforcement Programs

Contact: Directorate of Enforcement Programs

Office of the Whistleblower Protection Program

200 Constitution Avenue, NW, N3610

Washington, DC 20210

202-693-2199

By and Under the Authority of

David Michaels, PhD, MPH

Assistant Secretary

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Executive Summary

OSHA Instruction DIS 0-0.9, Whistleblower Investigations Manual, dated August 22, 2003, provided guidance for investigating complaints of retaliation under fourteen whistleblower statutes. At the time of publication, OSHA now has responsibility for investigating whistleblower complaints under twenty-one statutes, each containing various differences and distinctions in the way the cases are processed and investigated. This Instruction updates the previous Manual to include the new statutes and includes minor corrections and enhancements to the previous version.

Significant Changes

Three chapters are added and various other chapters updated to provide guidance for the processing and investigation of whistleblower complaints under the Federal Railroad Safety Act, the National Transit Systems Security Act, and the Consumer Product Safety Improvement Act.

In order to achieve greater consistency among the various statutes, this instruction adopts the approach of including global sample letters, with prompts that can easily be modified for use in whistleblower investigations under any statute within OSHAs jurisdiction.

This instruction incorporates changes in procedures for handling Privacy Act files and Freedom of Information Act requests, that have been previously transmitted to the field and posted on OSHAs public website, and provides that throughout the investigation, OSHA will provide to the complainant a copy of the respondents submissions to OSHA, redacted if necessary, in accordance with applicable confidentiality laws.

This instruction clarifies that whistleblower complaints under any statute may be filed orally or in writing, and in any language, and that OSHA will be accepting electronically-filed complaints on its Whistleblower Protection Program website, http://www.whistleblowers.gov.

This instruction requires that as a part of the intake process, the Supervisor will verify that applicable coverage requirements have been met and that the prima facie elements of the allegation have been properly identified.

This instruction contains an expanded discussion of causation, burdens of proof, and the elements of a violation.

This instruction specifies that the investigator must attempt to interview the complainant in all cases.

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http:http://www.whistleblowers.gov

This instruction renames the Final Investigation Report (FIR) to the Report of Investigation (ROI), to be consistent with the terminology for internal investigation reports used by several other DOL agencies, and streamlines the report-writing process to eliminate redundancy in report-writing.

This instruction specifies that interest on back pay and other damages shall be computed by compounding daily the IRS interest rate for the underpayment of taxes.

This instruction requires that Secretarys Findings be issued in all dismissals of complaints investigated under Section 11(c) of the Occupational Safety and Health Act, the Asbestos Hazard Emergency Response Act, and the International Safe Container Act.

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Disclaimer

This manual is intended to provide instruction regarding some of the internal

operations of the Occupational Safety and Health Administration (OSHA), and is

solely for the benefit of the Government. No duties, rights, or benefits, substantive

or procedural, are created or implied by this manual. The contents of this manual

are not enforceable by any person or entity against the Department of Labor or the

United States. Statements which reflect current Administrative Review Board or

court precedents do not necessarily indicate acquiescence with those precedents.

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Table of Contents

CHAPTER 1

PRELIMINARY MATTERS

II. PURPOSE 1-1

III. SCOPE 1-1

IV. REFERENCES 1-1

V. CANCELLATIONS 1-2

VI. ACTION INFORMATION 1-3

A. RESPONSIBLE OFFICE 1-3

B. ACTION OFFICES 1-3

C. INFORMATION OFFICES 1-3

VII. STATE IMPACT 1-3

A. NOTICE OF INTENT, ADOPTION, AND SUBMISSION OF A PLAN CHANGE

SUPPLEMENT ARE REQUIRED. 1-3

B. APPEAL PROCESS. 1-4

C. DUAL FILING. 1-4

D. REOPENING CASES. 1-5

E. REFERRALS. 1-5

F. ACTION. 1-5

VIII. SIGNIFICANT CHANGES 1-5

A. GENERAL 1-5

B. CHAPTER 1. PRELIMINARY MATTERS. 1-6

C. CHAPTER 2. INTAKE AND EVALUATION OF COMPLAINTS. 1-6

D. CHAPTER 3. CONDUCT OF THE INVESTIGATION. 1-7

E. CHAPTER 4. CASE DISPOSITION. 1-8

F. CHAPTER 5. DOCUMENTATION AND SECRETARYS FINDINGS. 1-8

G. CHAPTER 6. REMEDIES AND SETTLEMENT AGREEMENTS. 1-8

H. CHAPTER 7. SECTION 11(C) OF THE OCCUPATIONAL SAFETY AND

HEALTH ACT. 1-9

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I. CHAPTER 14, THE WHISTLEBLOWER PROVISION OF THE SARBANESOXLEY ACT (SOX) 1-9

IX. BACKGROUND 1-10

X. FUNCTIONAL RESPONSIBILITIES 1-12

A. RESPONSIBILITIES. 1-12

XI. INVESTIGATIVE RECORDS 1-16

A. NON-PUBLIC DISCLOSURE. 1-16

B. TRADE SECRETS AND CONFIDENTIAL BUSINESS INFORMATION (CBI) 1-18

C. ATTORNEY-CLIENT-PRIVILEGED INFORMATION. 1-21

D. PUBLIC DISCLOSURE. 1-22

E. OSHA-INITIATED DISCLOSURE. 1-23

XII. STATISTICS 1-23

CHAPTER 2

INTAKE AND EVALUATION OF COMPLAINTS

I. SCOPE 2-1

II. RECEIPT OF COMPLAINT 2-1

III. INTAKE AND DOCKETING OF COMPLAINTS 2-2

A. INTAKE OF COMPLAINTS. 2-2

B. DOCKETING. 2-4

IV. TIMELINESS OF FILING 2-6

A. TIMELINESS. 2-6

B. DISMISSAL OF UNTIMELY COMPLAINTS. 2-6

C. EQUITABLE TOLLING. 2-7

D. CONDITIONS WHICH WILL NOT JUSTIFY EXTENSION OF THE FILING

PERIOD INCLUDE: 2-7

V. SCHEDULING THE INVESTIGATION. 2-8

VI. CASE TRANSFER 2-8

VII. INVESTIGATIVE ASSISTANCE 2-9

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CHAPTER 3

CONDUCT OF THE INVESTIGATION

I. SCOPE 3-1

II. GENERAL PRINCIPLES 3-1

III. CASE FILE 3-2

IV. PRELIMINARY INVESTIGATION 3-2

A. INTAKE AND EVALUATION. 3-2

B. EARLY RESOLUTION. 3-2

C. THRESHOLD ISSUES OF TIMELINESS AND COVERAGE. 3-3

D. PRE-INVESTIGATIVE RESEARCH. 3-4

E. COORDINATION WITH OTHER AGENCIES. 3-4

F. OTHER LEGAL PROCEEDINGS. 3-4

V. WEIGHING THE EVIDENCE. 3-5

A. MOTIVATING FACTOR STATUTES. 3-5

B. CONTRIBUTING FACTOR STATUTES. 3-7

C. GATEKEEPING PROVISIONS. 3-8

VI. THE FIELD INVESTIGATION 3-8

A. THE ELEMENTS OF A VIOLATION. 3-8

B. CONTACT WITH COMPLAINANT. 3-12

C. ON-SITE INVESTIGATION. 3-15

D. COMPLAINANT INTERVIEW. 3-15

E. CONTACT WITH RESPONDENT. 3-17

F. UNCOOPERATIVE RESPONDENT. 3-19

G. EARLY INVOLVEMENT OF THE RSOL. 3-20

H. FURTHER INTERVIEWS AND DOCUMENTATION. 3-20

I. RESOLVE DISCREPANCIES. 3-21

J. ANALYSIS. 3-21

K. CONCLUSION OF INVESTIGATIONS OF NON-MERIT COMPLAINTS. 3-21

L. DOCUMENTING THE INVESTIGATION. 3-22

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CHAPTER 4

CASE DISPOSITION

I. SCOPE 4-1

II. PREPARATION 4-1

A. INVESTIGATOR REVIEWS THE FILE. 4-1

B. INVESTIGATOR AND SUPERVISOR DISCUSS THE CASE. 4-1

III. REPORT OF INVESTIGATION 4-1

IV. CASE REVIEW AND APPROVAL BY THE SUPERVISOR 4-2

A. REVIEW. 4-2

B. APPROVAL. 4-2

C. LEGAL REQUIREMENTS. 4-6

V. AGENCY DETERMINATION 4-6

VI. APPEALS AND OBJECTIONS. 4-7

A. OSHA, AHERA, AND ISCA CASES. 4-7

B. OTHER CASE TYPES. 4-8

VII. APPROVAL FOR LITIGATION 4-9

CHAPTER 5

DOCUMENTATION AND SECRETARYS FINDINGS

I. SCOPE. 5-1

II. ADMINISTRATIVELY CLOSED COMPLAINTS. 5-1

III. CASE FILE ORGANIZATION 5-1

IV. DOCUMENTING THE INVESTIGATION. 5-4

A. CASE ACTIVITY/TELEPHONE LOG. 5-4

B. REPORT OF INVESTIGATION (FORMERLY CALLED FINAL INVESTIGATION REPORT OR FIR). 5-4

C. CLOSING CONFERENCE. 5-6

V. SECRETARYS FINDINGS. 5-6

A. PURPOSE. 5-6

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B. WHEN REQUIRED 5-6

C. ORDERS AND PRELIMINARY ORDERS IN CASES WHICH MAY BE HEARD BY OALJ. 5-7

D. FORMAT OF THE SECRETARYS FINDINGS. 5-7

E. PROCEDURE FOR ISSUING FINDINGS UNDER OSHA 11(C), AHERA, AND ISCA. 5-9

F. PROCEDURE FOR ISSUING FINDINGS UNDER STAA, ERA, CAA, CERCLA, FWPCA, SDWA, SWDA, TSCA, AIR21, SOX, PSIA, FRSA, NTSSA, CPSIA, ACA, CFPA, SPA, AND FSMA. 5-9

VI. DELIVERY OF THE CASE FILE. 5-10

VII. DOCUMENTING KEY DATES IN IMIS. 5-10

A. DATE COMPLAINT FILED. 5-10

B. ROI (FORMERLY FIR) DATE. 5-10

C. DETERMINATION DATE. 5-11

D. DATE APPEAL OR OBJECTION FILED. 5-11

CHAPTER 6

REMEDIES AND SETTLEMENT AGREEMENTS

I. SCOPE 6-1

II. REMEDIES. 6-1

A. REINSTATEMENT AND FRONT PAY 6-1

B. BACK PAY 6-1

C. COMPENSATORY DAMAGES. 6-2

D. PUNITIVE DAMAGES. 6-2

E. ATTORNEYS FEES. 6-3

F. INTEREST 6-3

III. SETTLEMENT POLICY 6-5

IV. SETTLEMENT PROCEDURE. 6-5

A. REQUIREMENTS. 6-5

B. ADEQUACY OF SETTLEMENTS. 6-5

C. THE STANDARD OSHA SETTLEMENT AGREEMENT. 6-7

D. SETTLEMENTS TO WHICH OSHA IS NOT A PARTY. 6-9

E. CRITERIA BY WHICH TO REVIEW PRIVATE SETTLEMENTS. 6-11

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V. BILATERAL AGREEMENTS (FORMERLY CALLED

UNILATERAL AGREEMENTS). 6-13

VI. ENFORCEMENT OF SETTLEMENTS. 6-14

CHAPTER 7

SECTION 11(C) OF THE OCCUPATIONAL SAFETY AND HEALTH ACT

I. INTRODUCTION. 7-1

II. REGULATIONS. 7-1

III. COVERAGE 7-1

IV. PROTECTED ACTIVITY. 7-2

V. RELATIONSHIP TO STATE PLAN STATES 7-5

A. GENERAL. 7-5

B. STATE PLAN STATE COVERAGE. 7-5

C. OVERVIEW OF THE 11(C) REFERRAL POLICY. 7-5

D. PROCEDURES FOR REFERRING COMPLAINTS TO STATE PLANS 7-6

E. PROCEDURES FOR PROCESSING DUALLY FILED 11(C) COMPLAINTS 7-7

F. REFERRAL PROCEDURE COMPLAINTS RECEIVED BY STATE PLAN

STATES 7-9

G. COMPLAINTS ABOUT STATE PROGRAM ADMINISTRATION (CASPAS) 7-10

CHAPTER 8

THE WHISTLEBLOWER PROVISION OF THE ASBESTOS HAZARD EMERGENCY RESPONSE ACT (AHERA)



III. COVERAGE 8-1


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CHAPTER 9

THE WHISTLEBLOWER PROVISION OF THE INTERNATIONAL SAFE CONTAINER ACT (ISCA)



III. COVERAGE. 9-2


CHAPTER 10

THE WHISTLEBLOWER PROVISION OF THE SURFACE

TRANSPORTATION ASSISTANCE ACT (STAA)



III. COVERAGE. 10-2

A. EMPLOYEE. 10-2

B. COMMERCIAL MOTOR VEHICLE (CMV) (49 U.S.C. 31101(1)). 10-2

C. COMMERCIAL MOTOR CARRIER. 10-2

D. PERSON. 10-3

E. IN COMMERCE. 10-3

IV. PROTECTED ACTIVITY 10-3

V. KICK-OUT PROVISION 10-5

CHAPTER 11

THE WHISTLEBLOWER PROVISIONS OF THE

ENVIRONMENTAL STATUTES

I. INTRODUCTION 11-6

II. REGULATIONS 11-12

III. COVERAGE UNDER THE ENVIRONMENTAL STATUTES,

GENERALLY 11-12

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11-12 IV. PROTECTED ACTIVITY

CHAPTER 12

THE WHISTLEBLOWER PROVISION OF THE ENERGY REORGANIZATION ACT (ERA)



III. COVERAGE 12-1


V. NUCLEAR REGULATORY COMMISSION INVESTIGATIONS OF RETALIATION CLAIMS. 12-3

VI. DEPARTMENT OF ENERGY CONTRACTOR EMPLOYEE

PROTECTION PROGRAM (DOE-CEPP). 12-4

VII. KICK-OUT PROVISION 12-4

CHAPTER 13

THE WHISTLEBLOWER PROVISION OF THE WENDELL

H. FORD AVIATION INVESTMENT AND REFORM ACT

FOR THE 21ST CENTURY (AIR21)



III. COVERAGE 13-1

A. AIR CARRIER 13-2

B. CONTRACTOR 13-3

C. SUBCONTRACTOR 13-3


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CHAPTER 14

THE WHISTLEBLOWER PROVISION OF THE SARBANES-OXLEY ACT (SOX)



III. COVERAGE 14-2

A. COMPANIES. 14-2

B. EMPLOYEE 14-4


A. ALLEGED VIOLATIONS. 14-4


A. SPECIAL PROCEDURES FOR SOX CASES. 14-5

CHAPTER 15

THE WHISTLEBLOWER PROVISION OF THE PIPELINE

SAFETY IMPROVEMENT ACT (PSIA)



III. COVERAGE 15-1


CHAPTER 16

THE WHISTLEBLOWER PROVISION OF THE FEDERAL

RAILROAD SAFETY ACT (FRSA)



III. COVERAGE 16-3

A. CORRESPONDENCE WITH FRA JURISDICTION. 16-6

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B. OVERLAP BETWEEN FRSA AND NTSSA. 16-6

C. STATE PLAN COORDINATION. 16-6



VI. ELECTION OF REMEDIES 16-9

VII. NO PREEMPTION 16-10

VIII. RIGHTS RETAINED BY EMPLOYEE. 16-10

CHAPTER 17

THE WHISTLEBLOWER PROVISION OF THE NATIONAL TRANSIT SYSTEMS SECURITY ACT (NTSSA)



III. COVERAGE. 17-2

A. OVERLAP BETWEEN FRSA AND NTSSA. 17-3

B. STATE PLAN COORDINATION. 17-4


V. KICK-OUT PROVISION. 17-6

VI. ELECTION OF REMEDIES. 17-6

VII. NO PREEMPTION. 17-6

VIII. X. RIGHTS RETAINED BY EMPLOYEE. 17-6

CHAPTER 18

THE WHISTLEBLOWER PROVISION OF THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT

(CPSIA)



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III. COVERAGE. 18-1


V. OVERVIEW ACTS AND REQUIREMENTS ENFORCED BY THE COMMISSION. 18-4

VI. KICK-OUT PROVISION. 18-8

CHAPTER 19

THE WHISTLEBLOWER PROVISION OF THE AFFORDABLE CARE ACT (ACA)

(RESERVED)

CHAPTER 20

THE WHISTLEBLOWER PROVISION OF THE CONSUMER FINANCIAL PROTECTION ACT OF 2010

(CFPA), SECTION 1057 OF THE DODD-FRANK WALL

STREET REFORM AND CONSUMER PROTECTION ACT

OF 2010

(RESERVED)

CHAPTER 21

THE WHISTLEBLOWER PROVISION OF THE SEAMANS PROTECTION ACT, (SPA), AS AMENDED BY SECTION

611 OF THE COAST GUARD AUTHORIZATION ACT OF

2010

(RESERVED)

CHAPTER 22

THE WHISTLEBLOWER PROVISION OF THE FDA FOOD

SAFETY MODERNIZATION ACT (FSMA)

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(RESERVED)

CHAPTER 23

RESPONDING TO FOIA REQUESTS FOR WHISTLEBLOWER CASE FILE MATERIALS

(RESERVED)

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Chapter 1

PRELIMINARY MATTERS

II. Purpose

This Instruction implements the OSHA Whistleblower Investigations Manual, and supersedes the August 22, 2003 Instruction. This manual outlines procedures, and other information relative to the handling of retaliation complaints under the various whistleblower statutes delegated to OSHA and may be used as a ready reference.

III. Scope

OSHA-wide.

IV. References

The whistleblower provisions of the following statutes: Occupational Safety and Health Act (OSHA 11(c)), 29 U.S.C. 660(c); Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105; Asbestos Hazard Emergency Response Act (AHERA), 15 U.S.C. 2651; International Safe Container Act (ISCA), 46 U.S.C. 80507; Safe Drinking Water Act (SDWA), 42 U.S.C. 300j-9(i); Federal Water Pollution Control Act (FWPCA), 33 U.S.C. 1367; Toxic Substances Control Act (TSCA), 15 U.S.C. 2622; Solid Waste Disposal Act (SWDA), 42 U.S.C. 6971; Clean Air Act (CAA), 42 U.S.C. 7622; Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9610; Energy Reorganization Act (ERA), 42 U.S.C. 5851; Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121; Sarbanes Oxley Act (SOX), 18 U.S.C. 1514A; Pipeline Safety Improvement Act (PSIA), 49 U.S.C. 60129; Federal Railroad Safety Act (FRSA), 49 U.S.C. 20109; National Transit Systems Security Act (NTSSA), 6 U.S.C. 1142; Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. 2087; Affordable Care Act (ACA), 29 U.S.C. 218C; Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 12 U.S.C.A. 5567; Seamans Protection Act, 46 U.S.C. 2114 (SPA), as amended by Section 611 of the Coast Guard Authorization Act of 2010, P.L. 111-281; and FDA Food Safety Modernization Act (FSMA), 21 U.S.C. 399d.

29 CFR Part 1977 - Discrimination Against Employees Exercising Rights under the Williams-Steiger Occupational Safety and Health Act; 29 CFR Part 1978 - Interim Final Rule, Procedures for the Handling of Retaliation Complaints Under

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the Employee Protection Provision of the Surface Transportation Assistance Act of 1982; 29 CFR Part 1979 - Procedures for the Handling of Discrimination Complaints under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century; 29 CFR Part 1980 - Procedures for the Handling of Discrimination Complaints under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002; 29 CFR Part 1981 - Procedures for the Handling of Discrimination Complaints under Section 6 of the Pipeline Safety Improvement Act of 2002; 29 CFR Part 24 - Final Rule, Procedures for the Handling of Retaliation Complaints under the Employee Protection Provisions of Six Federal Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as amended; 29 CFR Part 1982 Interim Final Rule, Procedures for the Handling of Retaliation Complaints under the National Transit Systems Security Act and the Federal Railroad Safety Act; 29 CFR Part 1983 Interim Final Rule - Procedures for the Handling of Retaliation Complaints under Section 219 of the Consumer Product Safety Improvement Act of 2008.

OSHA Instruction CPL 02-00-148, OSHA Field Operations Manual (FOM), November 9, 2009.

OSHA Instruction CPL 02-02-072, Rules of agency practice and procedure concerning OSHA access to employee medical records, August 22, 2007.

OSHA Instruction CPL 02-00-098, Guidelines for Case File Documentation for Use with Videotapes and Audiotapes, October 12, 1993.

V. Cancellations

A. OSHA Instruction DIS 0-0.9, Whistleblower Investigations Manual, August 22, 2003.

B. OSHA Instruction DIS .7, Referral of Section 11(c) Complaints to State Plan States, February 27, 1986.

C. Memorandum dated September 15, 2003 to the Regional Administrators from Deputy Assistant Secretary R. Davis Layne regarding Corporate and Criminal Fraud Accountability Act Whistleblower Complaints (Sarbanes-Oxley).

D. Memorandum dated December 6, 2004 to the Regional Administrators from Director of the Directorate of Enforcement Programs Richard E. Fairfax regarding Sarbanes-Oxley Complaints.

E. Memorandum dated April 11, 2006 to the Regional Administrators from Acting Deputy Assistant Secretary Steven F. Witt regarding Revised Interim Guidelines on Changes in Procedures for Handling Privacy Act Files and Freedom of Information Act Requests.

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F. Memorandum dated May 11, 2006 to the Regional Administrators from Director of the Directorate of Enforcement Programs Richard E. Fairfax regarding Revised Interim Guidelines on Changes in Procedures for Handling Privacy Act Files and Freedom of Information Act Requests.

G. Memorandum dated July 23, 2007 to the Regional Administrators from Assistant Secretary Edwin G. Foulke, Jr. regarding Policy for approving settlement agreements containing future employment waiver clauses in whistleblower cases.

H. Memorandum dated May 25, 2010 to the Regional Administrators from Deputy Assistant Secretary Richard E. Fairfax regarding Sarbanes-Oxley Act of 2002.

VI. Action Information

A. Responsible Office

Directorate of Enforcement Programs.

B. Action Offices

National, Regional, and Area Offices.

C. Information Offices

State Plan States and OSHA Training Institute.

VII. State Impact

A. Notice of Intent, Adoption, and Submission of a Plan Change Supplement are Required.

This Whistleblower Investigations Manual is a Federal Program Change that establishes procedures for the investigation of whistleblower complaints including several important new requirements. All State Plans are required to have statutory authority parallel to section 11(c) of the OSH Act. States are expected to establish, and include as a part of their state plan, policies and procedures for occupational safety and health discrimination protection (analogous to federal protections under section 11(c) in Chapters 1-7 of this manual) that are at least as effective as the federal 11(c) implementing policies. This is particularly important for the effective implementation of the referral/deferral policy established in Chapter 7. As provided in section 18(e) of the Occupational Safety and

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Health Act, federal concurrent authority under section 11(c) is never relinquished in a state with an approved state plan. State implementing procedures need not address the other whistleblower protection statutes enforced solely by federal OSHA (as discussed in Chapters 8 through 18 of the manual) except as set out in paragraphs E and F, below.

B. Appeal Process.

States must include in their policies and procedures manual or other implementing documents, a procedure for appeal of an initial discrimination case determination which is at least as effective as the Federal procedure in Chapter 4, paragraph VI.A., of this Instruction. This may be a process similar to OSHAs review by an internal committee as set out in Chapter 4, an adjudicatory proceeding, or another at least as effective mechanism, but complainants must be afforded the opportunity for reconsideration of an initial negative determination within the State. Complainants will be required to exhaust this remedy before Federal OSHA will accept a request for federal review of a dually-filed complaint or a Complaint About State Program Administration (CASPA) regarding a discrimination case filed only with the state. A private right to seek court action in whistleblower cases, as permitted in some States, is an additional right, not a substitute for the internal appeal process.

C. Dual Filing.

States must include in their policy document(s) a description of their procedures for informing private sector complainants of their right to concurrently file a complaint under section 11(c) with Federal OSHA within 30 days of the alleged retaliatory action, as was required in DIS.7 (February 27, 1986), now incorporated into this manual. In most situations, OSHA will defer to the State for investigation of such retaliation complaints, but dual filing preserves a complainants right to seek a federal remedy should the state be unable to effect appropriate relief. States must provide notice of their intent to adopt either policies and procedures identical to those set out in this directive or alternative policies and procedures that are at least as effective. State policies and procedures must be adopted within 6 months of issuance of this Instruction. Each State must both submit a copy of its revised manual as a plan change supplement to OSHA within 60 days of adoption, preferably in electronic format, with identification of the differences from the Federal manual and either post its different policies on its state plan website and provide the link to OSHA or provide information on how the public may obtain a copy. OSHA will provide summary information on the state responses to this instruction on its website.

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D. Reopening cases.

States must have the authority to reopen cases based on the discovery of new facts, the results of a federal review, or other circumstances, as discussed in Chapter 7, paragraphs V.E.5. and V.G.5. Both the authority and procedures for implementing this requirement must be documented in the states equivalent nondiscrimination procedures.

E. Referrals.

In addition to section 11(c) of the OSH Act, federal OSHA administers, at the time of this publication, 20 other whistleblower statutes. Although these 20 statutes are administered solely by federal OSHA, state plans must assure that their personnel are familiar with these statutes, so that they are able to recognize allegations which may implicate these laws and make appropriate referrals to federal OSHA. States must include whistleblower complaint referral and coordination procedures in their manuals to reflect federal OSHAs administration of these laws.

F. Action.

States must provide notice of their intent within 60 days to adopt either policies and procedures identical to those set out in this directive or at least as effective alternative policies and procedures. State policies and procedures must be adopted within 6 months of issuance of this Instruction. Each state must : 1) submit a copy of its revised procedures as a plan change supplement to OSHA within 60 days of adoption, in electronic format, together with a comparison document identifying the differences from the Federal manual and the rationale for equivalent effectiveness; and 2) either post its different policies on its state plan website and provide the link to OSHA or provide information on how the public may obtain a copy. OSHA will provide summary information on the state responses to this instruction on its website.

VIII. Significant Changes

A. General

1. Three chapters are added and various other chapters updated to provide guidance for the processing and investigation of whistleblower complaints under the Federal Railroad Safety Act, the National Transit Systems Security Act, and the Consumer Product Safety Improvement Act. In addition, changes have been made to the Surface Transportation Assistance Act chapter pursuant to amendments made in the 9/11 Act and to the Sarbanes

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Oxley Act chapter pursuant to amendments made in the Dodd-Frank Financial Reform and Consumer Protection Act.

2. In order to achieve greater consistency among the various statutes, this instruction adopts the approach of including global sample letters, with prompts that can easily be modified for use in whistleblower investigations under any statute within OSHAs jurisdiction. For example, this instruction includes global complainant and respondent notification letters (chapter 2), postponement and deferral letters (chapter 4), and Secretarys Findings (chapter 5). However, a number of letters of particular use in Section 11(c) cases have been placed in chapter 7.

3. Various minor changes have been made throughout to add clarity.

B. Chapter 1. Preliminary Matters.

1. Chapter 1, paragraph IX.A.4: Reflects the current name of OSHAs national program office for whistleblower matters, the Office of the Whistleblower Protection Program (OWPP). Previously, this office was called the Office of Investigative Assistance (OIA).

2. Chapter 1, section X: Incorporates changes in procedures for handling Privacy Act files and Freedom of Information Act requests that have been previously transmitted to the field and posted on OSHAs public website. This section additionally provides that throughout the investigation, OSHA will provide to the complainant a copy of the respondents submissions to OSHA, redacted if necessary, in accordance with applicable confidentiality laws.

C. Chapter 2. Intake and Evaluation of Complaints.

1. Chapter 2, paragraph II: Clarifies that whistleblower complaints under any statute may be filed orally or in writing, and in any language. This section reaffirms OSHAs longstanding practice under all statutes of reducing all orally-filed complaints to writing. The clarifications in this section are being made in order to increase consistency in complaint processing among the various statutes and to ensure that all complainants have equal access to the complaint process. This section also has been updated to reflect that OSHA will be accepting electronically-filed complaints on its Whistleblower Protection Program website, http://www.whistleblowers.gov.

2. Chapter 2, paragraph II.A: Clarifies that a form OSHA-87 or the appropriate regional intake worksheet may be used for recording

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new whistleblower complaints. A simplified and updated sample OSHA-87 is included at Chapter 2, page 10.

3. Chapter 2, paragraph III.A: Specifies that as a part of the intake process, the Supervisor will verify that applicable coverage requirements have been met and that the prima facie elements of the allegation have been properly identified.

4. Chapter 2, paragraph III.B.3: Specifies that notification letters to the complainant may either be sent by certified U.S. mail, return receipt requested (or via a third-party commercial carrier that provides delivery confirmation), or may be hand-delivered to the complainant.

5. Chapter 2, paragraph IV.A, table II-1: This table indicates that whistleblower complainants under the Sarbanes-Oxley Act have 180 days to file a whistleblower complaint with OSHA. This has been updated from the 90 days reflected in the prior manual, as a result of the 2010 statutory amendment, which changed the statute of limitations for complaints under Sarbanes-Oxley from 90 to 180 days. This table now also reflects the filing deadlines under all other whistleblower statutes delegated to OSHA for enforcement since publication of the prior manual.

D. Chapter 3. Conduct of the Investigation.

1. Chapter 3, sections V and VI.A: Contain an expanded discussion of causation, burdens of proof, and the elements of a violation.

2. Chapter 3, section VI.B.2: Clarifies the procedures for processing complaint amendments.

3. Chapter 3, section VI.C: Removes the prior requirement that all recordings must be transcribed if they are to be used as evidence, and clarifies the procedures for digitally recording investigative interviews.

4. Chapter 3, section VI.D: Specifies that the investigator must attempt to interview the complainant in all cases.

5. Chapter 3, section VI.F: Offers expanded guidance on dealing with uncooperative respondents and clarifies the procedures for issuance of administrative subpoenas during whistleblower investigations.

6. Chapter 3, section VI.H: Removes the former requirement that a signed statement be obtained from each relevant witness, but retains the requirement that the investigator must attempt to interview each relevant witness.

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E. Chapter 4. Case Disposition.

1. Chapter 4, section VI.A .1: Offers expanded guidance on the role and function of the Appeals Committee.

F. Chapter 5. Documentation and Secretarys Findings.

1. Chapter 5, section IV.B: Renames the Final Investigation Report (FIR) to the Report of Investigation (ROI), to be consistent with the terminology for internal investigation reports used by several other DOL agencies, and streamlines the report-writing process to eliminate redundancy in report-writing. Use of the ROI is intended to afford greater flexibility to the Regions in documenting the investigation in the manner most appropriate to each case.

2. Chapter 5, section V: Offers expanded guidance on the content of, and procedures for issuing, Secretarys Findings.

3. Chapter 5, paragraph V.B.1: Requires that Secretarys Findings be issued in all dismissals of complaints investigated under Section 11(c) of the Occupational Safety and Health Act, the Asbestos Hazard Emergency Response Act, and the International Safe Container Act.

4. Chapter 5, Paragraph VII: Adds a new section on documenting key dates in OSHAs Integrated Management Information System (IMIS) case tracking system.

G. Chapter 6. Remedies and Settlement Agreements.

1. Chapter 6, section II: Includes a new section on remedies.

2. Chapter 6, paragraph II.D: Specifies that an award of reasonable attorneys fees must be made where authorized by the applicable statute(s).

3. Chapter 6, paragraph II.F: Specifies that interest on back pay and other damages shall be computed by compounding daily the IRS interest rate for the underpayment of taxes.

4. Chapter 6, section IV.E: Details expanded procedures for review and approval of settlement agreements.

5. Chapter 6, section V: Offers expanded guidance for the use of bilateral (formerly called unilateral) settlements in 11(c), AHERA, and ISCA cases.

6. Chapter 6, section V: Indicates that payment in OSHA settlements should be made in the form of a certified or cashiers check to the complainant.

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H. Chapter 7. Section 11(c) of the Occupational Safety and Health Act.

Chapter 7, section V: Clarifies the state plan referral process and the processing of dually-filed complaints. This section specifies that review of properly dually-filed complaints will be conducted in a manner similar to the deferral to arbitration process. Review of such complaints will only occur when the complaint has been properly dually filed and the complainant has made a request for federal review, in writing, within 15 days of the receipt of the states final administrative determination. Such complaints will no longer be considered to be Complaints About State Program Administration (CASPAs), and will not require a second CASPA investigation.

I. Chapter 14, The Whistleblower Provision of the Sarbanes-Oxley Act (SOX)

1. Chapter 14, section III: Adds nationally recognized statistical rating organizations or their officers, employees, contractors, subcontractors, and agents as covered respondents under SOX, in accordance with the statutory amendment to SOX contained in Section 922(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. 111-203, (Dodd-Frank).

2. Chapter 14, paragraph V.A: Requires National Office review of OSHAs findings in all merit determinations and certain significant dismissals, prior to their issuance, in order to ensure consistency among the Regions and to alert the National Office of any significant or unusual issues.

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IX. Background

A. The Occupational Safety and Health Act of 1970, 29 U.S.C. 660(c), is a federal statute of general application designed to regulate employment conditions relating to occupational safety and health and to achieve safer and more healthful workplaces throughout the nation. By the terms of the Act, every person engaged in a business affecting commerce is required to furnish each employee employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm and, further, to comply with occupational safety and health standards promulgated under the Act.

B. The Act provides, among other things, for the adoption of occupational safety and health standards, research and development activities, inspections and investigations of workplaces, and recordkeeping requirements. Enforcement proceedings initiated by the Department of Labor, review proceedings before an independent quasi-judicial agency (Occupational Safety and Health Review Commission), and judicial review are provided by the Act. In addition, States seeking to assume responsibility for development and enforcement of standards may submit plans to the Secretary of Labor and receive approval for such development and enforcement.

C. Employees and representatives of employees are afforded a wide range of substantive and procedural rights under the Act. Moreover, effective implementation of the Act and achievement of its goals depend in large measure upon the active and orderly participation of employees, individually and through their representatives, at every level of safety and health activity. Such participation and employee rights are essential to the realization of the fundamental purposes of the Act.

D. Section 11(c) of the Act provides, in general, that no person shall discharge or in any manner discriminate (retaliate) against any employee because the employee has exercised rights under the Act. Regional Administrators have overall responsibility for the investigation of retaliation complaints under Section 11(c). They have authority to dismiss non-meritorious complaints (absent withdrawal), approve acceptable withdrawals, and negotiate settlement of meritorious complaints or recommend litigation to the Solicitor of Labor in such cases.

1. In addition to the overall responsibility of enforcing Section 11(c) of the Act, the Secretary of Labor has delegated to OSHA the responsibility for investigating claims of retaliation filed by employees under the whistleblower provisions of the following twenty statutes, which together constitute the whistleblower protection program:

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a. Asbestos Hazard Emergency Response Act (AHERA), 15 U.S.C. 2651

b. International Safe Container Act (ISCA), 46 U.S.C. 80507

c. Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105

d. Clean Air Act (CAA), 42 U.S.C. 7622

e. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9610

f. Federal Water Pollution Control Act (FWPCA), 33 U.S.C. 1367

g. Safe Drinking Water Act (SDWA), 42 U.S.C. 300j- 9(i)

h. Solid Waste Disposal Act (SWDA), 42 U.S.C. 6971

i. Toxic Substances Control Act (TSCA), 15 U.S.C. 2622

j. Energy Reorganization Act (ERA), 42 U.S.C. 5851

k. Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121

l. Corporate and Criminal Fraud Accountability Act, Title VIII of the Sarbanes-Oxley Act (SOX), 18 U.S.C. 1514A (SOX)

m. Pipeline Safety Improvement Act (PSIA), 49 U.S.C. 60129

n. Federal Railroad Safety Act (FRSA), 49 U.S.C. 20109

o. National Transit Systems Security Act (NTSSA), 6 U.S.C. 1142

p. Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. 2087

q. Affordable Care Act (ACA), 29 U.S.C. 218C

r. Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 12 U.S.C. 5567

s. Seamans Protection Act, 46 U.S.C. 2114 (SPA), as amended by Section 611 of the Coast Guard Authorization Act of 2010, P.L. 111-281

t. FDA Food Safety Modernization Act (FSMA), 21 U.S.C. 399d

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X. Functional Responsibilities

A. Responsibilities.

1. Regional Administrator (RA). The RA has overall responsibility for all whistleblower investigation and outreach activities, as well as for ensuring that all OSHA personnel, especially compliance safety and health officers (CSHOs), have a basic understanding of the rights afforded to employees under all of the whistleblower statutes enforced by OSHA and are trained to take whistleblower complaints via the intake form(s). The RA is authorized to issue determinations and approve settlement of complaints filed under the various statutes. This authority may be re-delegated, but not lower than to the Assistant RA or Area Director.

2. Supervisor. Depending on the organizational structure in place in a given Region, investigators may be supervised by an Area Director, a Regional Supervisory Investigator, or a Team Leader. In this manual, the term supervisor is used to refer to an Area Director, Regional Supervisory Investigator, or Team Leader, who has responsibility for supervising the work of an investigator. Under the guidance and direction of the RA or his or her designee, the Supervisor is responsible for implementation of policies and procedures and for the effective supervision of field whistleblower investigations, including the following functions:

a. Receiving whistleblower complaints and promptly transmitting them to the supervisor, team leader, and/or the investigator. The Supervisor may receive whistleblower complaints directly from complainants, or from the National, Regional, and Area Offices, investigators, CSHOs, or other persons.

b. Ensuring that safety, health or other regulatory ramifications are identified during complaint intake and, when necessary, making referrals to the appropriate office or agency.

c. Assigning whistleblower cases to individual investigators.

d. As needed, investigating or conducting settlement negotiations for cases that are unusual or of a difficult nature.

e. Providing guidance, assistance, supervision, and direction to investigators during the conduct of investigations and settlement negotiations.

f. Reviewing investigative reports for comprehensiveness and technical accuracy and revising draft Secretarys Findings and presenting them for signature by the RA or his or her designee.

g. At the direction of the RA, coordinating and maintaining liaison with the Office of the Solicitor and other governmental

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agencies regarding whistleblower-program-related matters within the region.

h. Recommending to the RA and the Office of the Whistleblower Protection Program (OWPP) changes in policies and procedures in order to better accomplish agency objectives.

i. As assigned by the RA, monitoring and evaluating State Plan whistleblower programs and investigating Complaints about State Program Administration (CASPA) dealing with those programs.

j. Developing outreach programs and activities.

k. Providing training (formal and field) for investigators.

l. Performing necessary and appropriate administrative and personnel actions such as performance evaluations.

m. Performing other special duties and representing the region to other agencies and the media as a representative of the RA at the RAs discretion.

3. Investigator. Under the direct guidance and ongoing supervision of the Supervisor, the investigator assumes the following responsibilities:

a. Conducting complaint intake and documenting whether the allegations do or do not warrant field investigation.

b. Reviewing investigative and/or enforcement case files in field offices for background information concerning any other proceedings that relate to a specific complaint. As used in this manual, an enforcement case refers to an inspection or investigation conducted by an OSHA Compliance Safety and Health Officer (CSHO) or such inspections or investigations being conducted by another agency, as distinguished from a whistleblower case.

c. Interviewing complainants and witnesses, obtaining statements, and obtaining supporting documentary evidence.

d. Following up on leads resulting from interviews and statements.

e. Interviewing and obtaining statements from respondents officials, reviewing pertinent records, and obtaining relevant supporting documentary evidence.

f. Applying knowledge of the legal elements and evaluating the evidence revealed, analyzing the evidence, and recommending appropriate action to the Supervisor.

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g. Composing draft Secretarys Findings for review by the area director, supervisor or team leader.

h. Negotiating with the parties to obtain a settlement agreement that provides prompt resolution and satisfactory remedy and negotiating with the parties when they are interested in early resolution of any case in which the investigator has not yet recommended a determination.

i. Monitoring implementation of settlement agreements and ALJ, ARB and court orders, as assigned, determining specific actions necessary and the sufficiency of action taken or proposed by the respondent. If necessary, recommending that legal advice be sought on whether further legal proceedings are appropriate to seek enforcement of such settlement agreements or orders.

j. Assisting and acting on behalf of the RA and Supervisor in whistleblower matters with other agencies or OSHA Area Offices, and with the general public to perform outreach activities.

k. Assisting in the litigation process, including preparation for trials and hearings and testifying in proceedings.

l. As assigned, monitoring and evaluating State Plan whistleblower programs and investigating Complaints about State Program Administration (CASPA) dealing with those programs.

m. Maintaining case files that include some or all of these elements.

4. Office of the Whistleblower Protection Program (OWPP). Under the direction of the Director, Directorate of Enforcement Programs, the Office of the Whistleblower Protection Program (OWPP) performs the following functions, in addition to others that may not be listed:

a. Developing policies and procedures for the Whistleblower Protection Program.

b. Processing, hearing, and evaluating appeals that are to be presented to the Appeals Committee under Section 11(c) of the Occupational Safety & Health Act (Section 11(c)), the Asbestos Hazard Emergency Response Act (AHERA), and the International Safe Container Act (ISCA).

c. Developing and presenting formal training for Federal and State field staff.

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d. Organizing national conferences, such as conferences of whistleblower investigators to discuss recent developments in anti-retaliation law.

e. Providing technical assistance to field investigative staff, obtaining legal interpretations relevant to the whistleblower program nationwide, and disseminating those legal interpretations to field investigative staff.

f. Maintaining a law library of legal cases and decisions pertinent to whistleblower investigations. Sharing significant legal developments with field staff.

g. Maintaining a statistical database on whistleblower investigations.

h. Assisting in commenting on legislation on whistleblower matters.

i. Processing and reviewing significant whistleblower cases.

j. Maintaining Whistleblower Protection Program Web pages on the OSHA Intranet and Internet websites.

k. Acting as liaison between the Whistleblower Protection Program and other government agencies.

l. Supporting regional or National Office audits of case files to ensure national consistency.

m. Assisting in the investigation of complex cases, as requested by the RA, or providing technical assistance in the investigation of such cases.

n. Providing statistical information on whistleblower complaints to the public, both in response to informal requests and by publishing statistics on the Web.

5. Compliance Safety and Health Officer (CSHO). Each CSHO is responsible for maintaining a basic understanding of the employee protection provisions administered by OSHA, in order to advise employers and employees of their responsibilities and rights under these laws. Each CSHO must accurately record information about potential complaints on an OSHA-87 form or the appropriate regional intake worksheet and immediately forward it to the Supervisor. In every instance, the date of the initial contact must be recorded.

6. National Solicitor of Labor (NSOL). The National Solicitor of Labor provides assistance to the Regional Solicitors, advises the Office of the Whistleblower Protection Program, and represents the Assistant Secretary before the Administrative Review Board and the Secretary before the courts of appeals. The Division of

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Occupational Safety and Health in NSOL provides legal services under OSHA, STAA, AHERA, ISCA, and SPA, including participation on the Appeals Committee. The Division of Fair Labor Standards in NSOL provides legal services under ERA, CAA, CERCLA, FWPCA, SDWA, SWDA, TSCA, AIR21, SOX, PSIA, FRSA, NTSSA, CPSIA, ACA, CFPA, and FSMA.

7. Regional Solicitor of Labor (RSOL). Each RSOL reviews cases submitted by RAs for their legal merit, makes decisions regarding case merit, and litigates, as necessary, those cases deemed meritorious. Regional attorneys provide legal advice to the RA and represent the Secretary in federal district court proceedings under the various statutes and the Assistant Secretary for Occupational Safety and Health in proceedings before DOL administrative law judges.

XI. Investigative Records

Investigative materials or records include interviews, notes, work papers, memoranda, e-mails, documents, and audio or video recordings received or prepared by an investigator concerning, or relating to the performance of any investigation, or in the performance of any official duties related to an investigation. Such original materials are records that are the property of the United States Government and must be included in the case file. Under no circumstances are investigation notes and work papers to be destroyed or retained, or used by an employee of the Government for any private purpose. In addition, files must be maintained and destroyed in accordance with official agency schedules for retention and destruction of records. Investigators may retain copies of final Reports of Investigation (ROI) and Secretarys Findings for reference.

The disclosure of information in investigative records is governed by the Privacy Act (PA), the goal of which is to protect the privacy of individuals in whose names records are kept, and the Freedom of Information Act (FOIA), the goal of which is to enable public access to government records. The guidelines below are intended to ensure that the Whistleblower Protection Program meets its obligations under both of these statutes.

A. Non-public Disclosure.

While a case is under investigation or appeal, information contained in the case file will be disclosed to the parties in order to resolve the complaint; we refer to these as non-public disclosures. Once a case is closed at the agency level, any and all records not otherwise protected from disclosure may be disclosed to the parties, upon their request. This non-public disclosure may also occur at any level after the investigative stage, through the course of any administrative or judicial proceedings, until the

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final disposition of the case, either through the administrative or judicial process. The procedures for non-public disclosures are as follows:

1. During an investigation, disclosure must be made to the respondent (or the respondents legal counsel if respondent is represented by counsel) of the complaint and any additional information provided by the complainant that is pertinent to the resolution of the complaint. If the complaint or information provided by the complainant contains personal, identifiable information about individuals other than the complainant, such information, where appropriate, should be redacted (without listing the specific exemptions that would be used if it were released under FOIA) before disclosure to the respondent. (This includes disclosures made in order to provide due process under the preliminary reinstatement provisions of STAA, AIR21, SOX, PSIA, NTSSA, FRSA, CPSIA, ACA, CFPA, SPA, and FSMA.)

2. Throughout the investigation, OSHA will provide to the complainant (or the complainants legal counsel if complainant is represented by counsel) a copy of all of the respondents submissions to OSHA that are responsive to the complainants whistleblower complaint. Before providing such materials to the complainant, OSHA will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.

3. Personal, identifiable information about individuals, other than the complainant and management officials representing the respondent, that is contained in the investigative file, such as statements taken by OSHA or information for use as comparative data, such as wages, bonuses, the substance of promotion recommendations, supervisory assessments of professional conduct and ability, or disciplinary actions, should generally be withheld when such information could violate those persons privacy rights, cause intimidation or harassment to those persons, or impair future investigations by making it more difficult for OSHA to collect similar information from others.

4. In taking statements from individuals other than management officials representing the respondent, the investigator must specifically ask if confidentiality is being requested, and must document the answer in the case file. Witnesses who request confidentiality will be advised that their identity and all of OSHAs records of the interview (including interview statements, audio or video recordings, transcripts, and investigators notes) will be kept confidential to the fullest extent allowed by law, but that if they are going to testify in a proceeding, the statement and their identity may need to be disclosed. Furthermore, they should be advised that their identity and the content of their statement may be

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disclosed to another Federal agency, under a pledge of confidentiality from that agency. In addition, all confidential interview statements obtained from non-managers (including former employees or employees of employers not named in the complaint) must be clearly marked in such a way as to prevent the unintentional disclosure of the statement.

5. Appropriate, relevant, necessary and compatible investigative records may be disclosed to other federal agencies responsible for investigating, prosecuting, enforcing, or implementing the general provisions of the statutes whose whistleblower provisions are enforced by OSHA, if OSHA deems such disclosure to be compatible with the purpose for which the records were collected.

6. Appropriate, relevant, necessary, and compatible investigative records may be shared with another agency or instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity, if the activity is authorized by law, and if that agency or instrumentality has made a written request to OSHA, signed by the head of the agency, specifying the particular records sought and the law enforcement activity for which the records are sought.

When such a request for records is received, the supervisor must immediately notify RSOL of its receipt, so that the disclosure may be made in full compliance with 5 U.S.C. 552a, subsection (b)(7) and 29 CFR 2.21 (Third Party Subpoena Regulation [Touhy Regs.]).

B. Trade Secrets and Confidential Business Information (CBI)

1. A trade secret, under exemption 4 of FOIA, 5 U.S.C. 552(b)(4), is narrowly defined as a secret, commercially valuable plan, formula, process, or device that is used for making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort. Center for Auto Safety v. Natl Highway Traffic Safety Admin., 244 F.3d 144, 150-51 (D.C. Cir. 2001), quoting Public Citizen Health Research Group v. Food and Drug Admin., 704 F.2d 1280, 1288 (D.C. Cir 1983). As such, trade secrets would rarely be at issue in whistleblower cases. However, if, during the course of an investigation, a respondent has clearly labeled and explained in writing why a document or some portion of a document submitted constitutes a trade secret, the investigator should place the document under a separate tab clearly labeled Trade Secret. If requested, assurance may be made in writing that the information will be held in confidence to the extent allowed by law, and that, under Executive Order 12600, submitters

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of confidential commercial or financial information will be notified in writing of a pending FOIA request for disclosure of such information and will be given an opportunity to comment on the impact of any potential disclosure before the Agency reaches a decision regarding its disclosure. As required by the Executive Order, if this agency does not agree with the submitter that materials identified by the business submitter as Confidential Business Information (CBI) should be protected, business submitters must be notified in writing and granted reasonable time to protest the release in a court of competent jurisdiction.

2. Should an assertion of trade secrets arise in an 11(c) case, whistleblower protection program staff should familiarize themselves with the requirements of Section 15 of the OSH Act, which provides: All information reported to or otherwise obtained by the Secretary or his representative in connection with any inspection or proceeding under this Act which contains or which might reveal a trade secret referred to in section 1905 of title 18 of the United States Code shall be considered confidential for the purpose of that section, except that such information may be disclosed to other officers or employees concerned with carrying out this Act or when relevant in any proceeding under this Act. In any such proceeding the Secretary, the Commission, or the court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets. See also Freedom of Information Act, 5 U.S.C. 552(b)(4); 29 CFR Part 70, Production or Disclosure of Information or Materials; 29 CFR Part 71, Protection of Individual Privacy and Access to Records under the Privacy Act of 1974; DOL/OSHA-1, System Notice: Discrimination Complaint File.

3. Information is considered confidential business information if it is commercial or financial, obtained from a person, and privileged or confidential. These terms are defined as follows:

a. Commercial or financial is defined as relating to business or trade. Typically encountered examples are business sales statistics, research data, technical designs, customer and supplier lists, profit and loss data, overhead and operating costs, and information on financial condition (unless that information is publicly available, as are filings with the SEC).

b. The criterion that the information be obtained from a person is easily met, since the definition of person in the Administrative Procedure Act at 5 U.S.C. 551(2) includes an individual, partnership, corporation, association, or public or private organization other than an agency.

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c. The definition of confidential depends on how it was obtained.

i. Information that is voluntarily provided to the government is confidential if it is of a kind that would normally not be released to the public by the person from whom it was obtained. Evidence obtained in the investigation of a case is generally voluntarily provided, unless it was obtained under subpoena.

ii. Information that is required of a person is confidential if its disclosure is likely to either impair the governments ability to obtain necessary information in the future or cause substantial harm to the competitive position of the person from whom the information was obtained. Competitive harm is limited to external harm that might result from the affirmative use of information by competitors; it should not be taken to mean simply any injury to competitive position such as might flow from customer or employee disgruntlement. Thus, unless the release of a settlement agreement would cause such harm, it is not CBI. Personally identifiable information in settlements that may be properly withheld under other FOIA exemptions, such as home addresses, phone numbers, and bank account information, must be redacted.

4. In the context of whistleblower investigations, most confidential business information is obtained voluntarily (subparagraph i., above); thus, if, during the course of an investigation, a respondent has clearly labeled and explained in writing why a document submitted is confidential commercial or financial information, the investigator should place it under a separate tab prominently labeled Confidential Business Information, or CBI. This tab is separate from any Trade Secrets tab. If the information was obtained under subpoena, it should be under a separate tab with the subpoena under which it was obtained. If requested, assurance may be made in writing that the information will be held in confidence to the extent allowed by law, and that, under Executive Order 12600, submitters of confidential commercial or financial information will be notified in writing of a pending FOIA request for disclosure of such information and will be given an opportunity to comment on the impact of any potential disclosure before the agency reaches a decision regarding its disclosure. As required by the Executive Order, if this agency does not agree with the submitter that materials identified by the business submitter as CBI should be protected, business submitters must be notified in writing and granted reasonable time to protest the release in a court of competent jurisdiction.

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Care must be taken with information that may be CBI but was obtained from the complainant rather than directly from the respondent. If the investigator believes that information submitted by complainant is reasonably likely to be CBI, he or she should mark those exhibits accordingly.

C. Attorney-client-privileged Information.

1. Attorney-complainants filing whistleblower complaints under any of the statutes administered by OSHA may use privileged information to the extent necessary to prove their claims, regardless of their employers claims of attorney-client or work-product privilege. Thus, an employer who refuses to produce documents for which it claims attorney-client privilege does so at the risk of negative inferences about their contents.

2. In cases involving privileged information submitted by attorney-complainants, OSHA will assure the parties that the evidence submitted by the attorney-complainant will receive special handling, will be shared only with them, and will be secured from unauthorized access. Further, to the extent that this evidence falls under attorney-client privilege, it will be withheld, to the extent allowed by law, from public disclosure under FOIA exemption 4. Generally, if the respondent has asserted that the information referred to in the complaint is privileged, the entire case file should be clearly labeled as containing information that is to be withheld because the complainant is an attorney bound by attorney-client privilege. If the respondent asserts that only certain information is privileged, then that information should be sealed in an envelope, labeled as above, and placed under a clearly labeled tab. If requested, assurance may be made in writing that the evidence will receive special handling and will be held permanently in confidence to the extent allowed by law.

3. The guidance above applies only when there is an attorney-complainant and does not apply to other cases in which respondents assert attorney-client privilege. In such cases where the complainant is not an attorney for the respondent, OSHA will not accept blanket claims of privilege. Rather, the respondent will be required to make specific, per-document claims, which OSHA will assess and handle accordingly. If these claims are found to be reasonable, and if the respondent so requests, assurance may be made in writing that the information will be held in confidence to the extent allowed by law, and that, under Executive Order 12600, submitters of confidential commercial or financial information will be notified in writing of a pending FOIA request for disclosure of such information and will be given an opportunity to comment on

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the impact of any potential disclosure before the agency reaches a decision regarding its disclosure. As required by the Executive Order, if this agency does not agree with the submitter that materials identified by the business submitter as CBI should be protected, business submitters must be notified in writing and granted reasonable time to protest the release in a court of competent jurisdiction.

D. Public Disclosure.

FOIA requests from non-party requesters must be directed to the appropriate Disclosure Officer. Upon receipt of a FOIA request relating to a closed case, the Disclosure Officer must process the request in compliance with Departmental FOIA regulations. See 29 CFR Part 70 et seq. and Department of Labor Manual Series (DLMS) 5, Chapter 300. The following definitions should be used in determining whether a case is considered open or closed:

1. Open Cases. If a case is open, information contained in the case file may generally not be disclosed to the public. (Note: appropriate non-public disclosures are made to the parties while the case is open, as described above.) In the event that the matter has become public knowledge because the complainant has released information to the media, limited disclosure may be made to an equivalent extent, if circumstances warrant doing so. Consultation with OWPP or RSOL is advisable before disclosure, especially in high-profile cases.

2. Closed Cases. Generally, cases under 11(c), AHERA, and ISCA should be considered closed when a final determination has been made as to whether litigation will be pursued. In contrast, cases under STAA, ERA, CAA, CERCLA, FWPCA, SDWA, SWDA, TSCA, AIR21, SOX, PSIA, FRSA, NTSSA, CPSIA, ACA, CFPA, SPA, and FSMA should generally be considered closed once OSHA has completed its investigation and issued its determination letter. However, these cases would be considered open if OSHA is participating as a party in the proceeding before the ALJ; recommending to RSOL that OSHA participate as a party in the proceeding; or if for any other reason, RSOL believes that it is appropriate to invoke the continuing application of exemption 7(A) of FOIA, 5 U.S.C. 552(b)(7)(A). (However, closure at the OSHA level has no bearing on appropriate, post-investigative, nonpublic disclosure of information between the parties described in paragraph A., above.)

3. Statistical Data. Disclosure may be made to Congress, the media, researchers, or other interested parties, of statistical reports containing aggregate results of program activities and outcomes.

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Disclosure may be in response to requests made by telephone, email, fax, or letter, by a mutually convenient method. Statistical data may also be posted by the system manager on the OSHA Web page. Regional offices should refer requests for national data to OWPP.

E. OSHA-Initiated Disclosure.

1. The Agency may decide that it is in the public interest or the Agencys interest to issue a press release or otherwise to disclose to the media the outcome of a complaint. A complainants name, however, may only be disclosed with his or her consent; otherwise, the disclosure must be without personal identifiers.

XII. Statistics

Statistics derived from reports containing aggregate results of program activities and outcomes may be posted by the system manager on the OSHA Web page.

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Chapter 2

INTAKE AND EVALUATION OF COMPLAINTS

I. Scope

This chapter explains the general process for receipt of whistleblower complaints under the various statutes, screening and docketing of complaints, initial notification to complainants and respondents, the scheduling of investigations, and recording the case data in OSHAs Integrated Management Information System (IMIS). Requirements for complaint-taking procedures, screening, coverage, timely filing, etc., that are unique to specific statutes will be discussed in subsequent chapters.

II. Receipt of Complaint

Any applicant for employment, employee, former employee, or his or her authorized representative is permitted to file a whistleblower complaint with OSHA. No particular form of complaint is required. A complaint under any statute may be filed orally or in writing. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. OSHA will be accepting electronically-filed complaints on its Whistleblower Protection Program website, http://www.whistleblowers.gov. Although the implementing regulations for a few of the whistleblower statutes indicate that complaints must be filed in writing,1 that requirement is satisfied by OSHAs longstanding practice of reducing all orally-filed complaints to writing.2 Potential complaints received by any OSHA office should be logged or in some manner tracked to ensure delivery and receipt by the appropriate investigative unit. Also, materials indicating the date the complaint was filed must be retained for investigative use. Such materials include envelopes bearing postmarks or FedEx tracking information, emails, and fax cover sheets. Complaints are usually received at the

1 As of the date of this publication, OSHAs implementing regulations for AIR21, SOX and PSIA state that complaints under those statutes must be in writing.

2 See, e.g., Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1, 1997 WL 578330, at *3 n.6 (Admin. Review Bd. Sept. 17, 1997) (complainants oral statement to an OSHA investigator, and the subsequent preparation of an internal memorandum by that investigator summarizing the oral complaint, satisfies the in writing requirement of CERCLA, 42 U.S.C. 9610(b), and the Departments accompanying regulations in 29 C.F.R. Part 24); Dartey v. Zack Co. of Chicago, No. 82ERA-2, 1983 WL 189787, at *3 n.1 (Secy of Labor Apr. 25, 1983) (adopting administrative law judges findings that complainants filing of a complaint to the wrong DOL office did not render the filing invalid and that the agencys memorandum of the complaint satisfied the in writing requirement of the ERA and the Departments accompanying regulations in 29 C.F.R. Part 24).

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Regional or Area Office level but may be referred by the National Office or from other government offices such as Congress or other administrative agencies.

A. For orally filed complaints, when a potential complaint is received at an Area or Regional Office, the receiving officer must accurately record the pertinent information on an OSHA-87 form or the appropriate regional intake worksheet and immediately forward it to the Supervisor. In every instance, the date of the initial contact must be recorded. Complaints where the initial contact is in writing do not require the completion of an OSHA-87 form, as the written filing will constitute the complaint.

B. Complaints received at the National Office or through other governmental units normally are forwarded to the RA or his or her designee for intake at the regional or area office level.

C. Whenever possible, the minimum complaint information should include: the complainants full name, address, and phone number; the name, address, and phone number of the respondent or respondents; date of filing; date of adverse action; a brief summary of the alleged retaliation addressing the prima facie elements of a violation (protected activity, respondent knowledge, adverse action, and a nexus), the statute(s) involved; and, if known, whether a safety, health, or other statutorily protected complaint has also been filed with OSHA or another enforcement agency.

D. OSHA is responsible for properly determining the statute(s) under which a complaint is filed. That is, a complainant need not explicitly state the statute(s) in the complaint. For example, a truck driver may mistakenly file a complaint under STAA regarding whistleblower activities that are in reality covered by an environmental statute rather than STAA. If a complaint indicates protected activities under multiple statutes, it is important to process the complaint in accordance with the requirements of each of those statutes in order to preserve the parties rights under each of the laws.

III. Intake and Docketing of Complaints

A. Intake of Complaints.

As soon as possible upon receipt of the potential complaint, the available information should be reviewed for appropriate coverage requirements, timeliness of filing, and the presence of a prima facie allegation. This usually requires preliminary contact with the complainant to obtain additional information. Regional authority over a case will generally be determined by consideration of the following factors: (1) the complainants assigned duty station; or (2) where the majority of

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witnesses appear to be located. If investigative assistance is required outside the assigned region, a written request must be coordinated through the RA.

1. Whenever possible, the evaluation of a potential complaint should be completed by the investigator that the supervisor anticipates will be assigned the case, and the evaluation should cover as many details as possible. When practical and possible, the investigator will conduct face-to-face interviews with complainants. When the investigator has tried and failed to reach a complainant at various times during normal work hours and in the evening, he or she must send a letter to the complainant stating that attempts to reach the complainant have been unsuccessful, and stating that if the complainant is interested in filing a complaint under any of the statutes enforced by OSHA, the complainant should make contact within 10 days of receipt of the letter, or OSHA will assume that the individual does not wish to pursue a complaint, and no further action will be taken. This letter must be sent by certified U.S. mail, return receipt requested (or via a third-party commercial carrier that provides delivery confirmation). Proof of delivery must be preserved in the file with a copy of the letter to maintain accountability.

2. OSHA, AHERA, and ISCA Complaints

a. OSHA, AHERA, and ISCA complaints that set forth a prima facie allegation and are filed within statutory time limits must be docketed for investigation.

b. OSHA, AHERA, and ISCA complaints that do not set forth a prima facie allegation, or are not filed within statutory time limits may be closed administrativelythat is, not docketed provided the complainant accepts this outcome. When a complaint is thus screened out, the investigator must appropriately enter the administrative closure in the IMIS. Additionally, the investigator must draft a letter to the complainant explaining the reason(s) the complaint is not

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